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PUBLISHED

UNITED STATES COURT OF APPEALS


FOR THE FOURTH CIRCUIT

NEIL HUMPHREY,
Petitioner-Appellant,
v.
CAROLYN ELIZABETH HUMPHREY,
Respondent-Appellee.

No. 04-1036

NEIL HUMPHREY,
Petitioner-Appellant,
v.
CAROLYN ELIZABETH HUMPHREY,
Respondent-Appellee.

No. 04-2242

NEIL HUMPHREY,
Petitioner-Appellant,
v.
CAROLYN ELIZABETH HUMPHREY,
Respondent-Appellee.

No. 04-2465

Appeals from the United States District Court


for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-03-1236-A)
Argued: December 1, 2005
Decided: January 10, 2006
Before MOTZ, KING, and DUNCAN, Circuit Judges.

HUMPHREY v. HUMPHREY

Vacated and remanded by published opinion. Judge Motz wrote the


opinion, in which Judge King and Judge Duncan joined.

COUNSEL
ARGUED: George Peter Sibley, III, HUNTON & WILLIAMS,
Richmond, Virginia, for Appellant. Stephen Douglas Halfhill, ALLRED, BACON, HALFHILL, LANDAU & YOUNG, Fairfax, Virginia, for Appellee. ON BRIEF: Maya M. Eckstein, HUNTON &
WILLIAMS, Richmond, Virginia, for Appellant.

OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Neil Humphrey filed a petition under the International Child
Abduction Remedies Act seeking the return of his children to the
United Kingdom. He alleged that his wife, Carolyn Humphrey, violated the Hague Convention on Civil Aspects of Child Abduction by
taking the couples children to live in the United States. The district
court stated that Mr. Humphrey was required to prove "beyond a reasonable doubt" that the children were "habitually resident" in the
United Kingdom at the time of their removal and concluded that Mr.
Humphreys evidence fell "short of showing that." Because Mr. Humphrey need only establish the childrens habitual residence by a preponderance of the evidence, we vacate the judgment of the district
court and remand for further proceedings consistent with this opinion.
I.
Neil Humphrey, a citizen of the United Kingdom, and Carolyn
Humphrey, a citizen of the United States, married on February 2,
2002 in Burke, Virginia. After their marriage, the couple lived with
Mrs. Humphreys parents in Virginia for a short time. In March 2002,
the couple moved to Scotland, where Mr. Humphrey worked. His
employer subsequently fired him because of a dispute with his boss.

HUMPHREY v. HUMPHREY

On May 31, 2002, Mrs. Humphrey gave birth to twins in Aberdeen,


Scotland. The Humphreys resided in Scotland until July 2002, when,
because of the couples financial difficulties, Mrs. Humphrey and the
children returned to the United States to live with her parents. While
back in the United States, Mrs. Humphrey renewed her Virginia drivers license and voters registration. Mr. Humphrey remained behind
in Scotland to complete a three-month work contract.
In September 2002, Mr. Humphrey lost his job in Scotland. He
then traveled to the United States to live with Mrs. Humphrey and her
parents. While in the United States, he applied for a spousal visa and
attempted to find a job in Richmond, Virginia, or Baltimore, Maryland.
Unable to secure a job and with time running out on his tourist
visa, Mr. Humphrey returned to the United Kingdom in December
2002. Mr. Humphrey maintains that he intended to remain there and
seek permanent employment. Mrs. Humphrey counters that the intent
of the trip was simply to renew his tourist visa and to finish filling
out the paperwork needed to obtain his spousal visa.
In February 2003, Mrs. Humphrey and the children traveled to
England to be with Mr. Humphrey. Mrs. Humphrey testified that the
purpose of this trip was to "support [her husband] in filing his paperwork and maybe expedite the process." She did not sell her car, or any
other items, when she left Virginia. However, in England, Mrs. Humphrey filed an "Application for indefinite leave to remain in the
United Kingdom as a spouse (husband or wife) or unmarried partner
of a person present and settled in the UK." Mrs. Humphrey contends
that she did so only after a long argument in which Mr. Humphrey
told her they could obtain more welfare benefits if she signed the
application a charge that Mr. Humphrey denies. While living in the
United Kingdom, both Humphreys joined the local library, although
Mrs. Humphrey maintains she did so only because it would allow her
husband an extra hour each day to use the Internet. The children
attended play groups and saw physicians in the United Kingdom.
On May 8, 2003, without Mr. Humphreys knowledge, Mrs. Humphrey and the children left the United Kingdom. After her plane
landed in the United States, Mrs. Humphrey immediately called her

HUMPHREY v. HUMPHREY

husband and informed him that she had taken the children to Virginia,
but that he could call or visit them at any time.
Mr. Humphrey reported the incident to the local police the morning
after his wife left with the children. On September 29, 2003, he filed
a petition in the Eastern District of Virginia seeking the return of his
children under the International Child Abduction Remedies Act
("ICARA"), 42 U.S.C.A. 11601-11611 (West 1995 & Supp. 2005),
and the Hague Convention on Civil Aspects of Child Abduction
("Hague Convention"), Oct. 25, 1980, T.I.A.S. No. 11,670, 19 I.L.M.
1501.
II.
ICARA requires a petitioner seeking return of an abducted child to
show "by a preponderance of the evidence" that "the child has been
wrongfully removed or retained within the meaning of the Convention." 42 U.S.C. 11603(e)(1) (emphasis added). The Hague Convention, in turn, requires a petitioner to demonstrate that: (1) the children
were "habitually resident" in petitioners country of residence at the
time of their removal; (2) the removal was in breach of petitioners
custody rights under the law of his home state; and (3) the petitioner
had been exercising those rights at the time of removal. Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001) (quoting Hague Convention
arts. 3-4).
After hearing testimony from both parents, the district court ruled
from the bench that:
There is no question at the time of the removal that the
children were in England. And there is no question that
England has a law that prohibits the taking of children under
these circumstances.
And there is no question at the time that the children were
taken, [Mr. Humphrey] was exercising his rights of custody.
He was living with his wife and living with the children.
And there was testimony that he was involved in their activities.

HUMPHREY v. HUMPHREY

The problem I have with Mr. Humphreys case is finding


from the evidence presented here that the children were
habitually residing in England. . . .
Mr. Humphrey has the burden in this case to show beyond
a reasonable doubt that these children were habitually residing in England at the time that they were taken. And I find
that his evidence falls short of showing that.
As I weigh the evidence in this case, and I have to do that
on the testimony that I have listened to and the exhibits that
I have received in evidence, and weighing the evidence
presented, I would say that the evidence tips on the defendants side, on Mrs. Humphreys side as to what was the
habitual residence of the children at the time they left
England and came back here.
And so, for that reason, I will have to dismiss this petition
because the evidence does not show that he is entitled to
such relief.
J.A. 186-88 (emphasis added).
Mr. Humphrey argues that the district court employed the wrong
standard of proof beyond a reasonable doubt rather than the
proper standard preponderance of the evidence. He contends that
this error requires us to vacate the district courts order and remand
the case. Mrs. Humphrey does not dispute that the district court misstated the law when it said that her husband must establish the childrens habitual residence "beyond a reasonable doubt." See 42
U.S.C.A. 11603(e)(1). Characterizing this error as a mere "slip of
the tongue," see Brief of Appellee at 12, she argues that the district
court actually applied the correct preponderance standard when it
stated that the evidence tips on the defendants side.
Mr. Humphrey concedes that the word "tips," if read in isolation,
"could reasonably be interpreted as indicating that the district court,
in fact, applied the preponderance standard." Brief of Appellant at 13.
He insists, however, that the district courts language cannot be read

HUMPHREY v. HUMPHREY

in isolation; the incorrectly stated burden of proof, Mr. Humphrey


contends, was the "fulcrum" on which the courts scale tipped.
While we find Mr. Humphreys argument somewhat more persuasive, even if we were to assume that both parties present equally plausible interpretations of the district courts oral ruling, Mrs. Humphrey
still would not prevail. If two equally plausible accounts of the district
courts analysis exist, we must conclude that the ruling was ambiguous. Faced with such ambiguity, we would presume that the district
court did just what it said: applied the incorrect, reasonable doubt
standard.
The error is a serious one because "the proper allocation of the burden of proof is an important procedural right." Bruner v. Office of
Pers. Mgmt., 996 F.2d 290, 292 (Fed. Cir. 1993). Indeed, in a criminal case, a defective instruction as to the burden of proof is fatal to
a jury verdict. See Neder v. United States, 527 U.S. 1, 8 (1999); Sullivan v. Louisiana, 508 U.S. 275, 281-82 (1993).
III.
Generally, when a trial court applies the incorrect burden of proof
in a civil case, appellate courts remand the case for a determination
under the appropriate standard. See Pullman-Standard v. Swint, 456
U.S. 273, 292 (1982) (citing Kelley v. S. Pac. Co., 419 U.S. 318, 33132 (1974)); see also SRSB-IV, Ltd. v. Continental Sav. Assn, 979
F.2d 39, 40 (5th Cir. 1992); Sanchez v. United States, 725 F.2d 29,
31 (2d Cir. 1984); Daye v. Harris, 655 F.2d 258, 262-64 (D.C. Cir.
1981); Cunningham v. Jones, 567 F.2d 653, 660 (6th Cir. 1977); A.W.
Thierren Co., Inc. v. H.K. Ferguson Co., 470 F.2d 912, 914 (1st Cir.
1972).
The Supreme Court explained the rationale for this general rule in
Kelley v. Southern Pacific Co., 419 U.S. 318 (1974). There, the Court
considered a railroads liability under the Federal Employers Liability Act for the injuries of a worker employed by one of the railroads
wholly owned subsidiaries. See id. at 319-20. The Court affirmed the
Ninth Circuits holding that the district court had erred by applying
traditional principles of agency law in determining whether the
worker was "employed by" the railroad. Instead, the district court

HUMPHREY v. HUMPHREY

should have examined whether the parties had a "master-servant relationship." Id. at 323-26. The Supreme Court disagreed with the Ninth
Circuit, however, on the appropriate method for resolving this error.
Id. at 331. While the Ninth Circuit had simply entered judgment for
the railroad, the Supreme Court ordered that the case be sent back to
the district court to make the relevant determination in the first
instance. "[W]e think the best course at this point is to require the trier
of fact to re-examine the record in light of the proper legal standard."
Id. at 332. Remand seems especially prudent when, as here, the district court may have employed too high a burden of proof. Cf. Sanchez, 725 F.2d at 31 ("[T]he possibility that an excessively strict
burden of proof was imposed persuades us to return the matter to the
District Court . . . .").
We recognize, however, that the presumption in favor of remand,
like many general rules, does allow a narrow exception. A court need
not remand a case if "the record permits only one resolution of the
factual issue." Pullman-Standard, 456 U.S. at 292. For example, even
when the trial court imposes the burden of proof on the wrong party,
an appellate court need not remand if that party has not satisfied its
more limited burden of production. See, e.g., Brown Daltas &
Assocs., Inc. v. Gen. Accident Ins. Co. of Am., 48 F.3d 30, 37-39 (1st
Cir. 1995). Similarly, when a trial court applies the wrong legal test
or quantum of proof, an appellate court may resolve the case without
remanding if the evidence would inevitably produce the same outcome under the correct standard. See, e.g., In re Taxman Clothing
Co., Inc., 905 F.2d 166, 171 (7th Cir. 1990); Fleming Bldg. Co., Inc.
v. Ne. Okla. Bldg. & Constr. Trades Council, 532 F.2d 162, 165 (10th
Cir. 1976).
But, unlike In re Taxman Clothing Co., Brown Daltas & Associates, and Fleming Building Co., the record in this case permits more
than one resolution. On the basis of the record evidence, a court might
reasonably credit Mrs. Humphreys account that she only went to the
United Kingdom to expedite her husbands return to their habitual
residence in the United States. After all, Mrs. Humphrey testified that
she had renewed her Virginia drivers license and voters registration,
and that she had kept her car in anticipation of her imminent return
from the United Kingdom.

HUMPHREY v. HUMPHREY

On the other hand, a court could find that the family established its
habitual residence in the United Kingdom. Under the Hague Convention, a habitual residence may be established in a place even if a family intends to stay there only "for a limited period." Feder v. EvansFeder, 63 F.3d 217, 223 (3d Cir. 1995) (quoting 1989 decision from
Family Division of the United Kingdoms Royal Courts of Justice
interpreting Hague Convention). Given the evidence that Mrs. Humphrey applied for leave to remain indefinitely in the United Kingdom,
that both parents obtained library cards, and that the children participated in play groups and saw local physicians there, a court might
conclude that the Humphreys met that standard.
Because this evidence "would have supported a judgment for either
side," In re Taxman Clothing Co., 905 F.2d at 171, we vacate the
judgment of the district court and remand the case for further proceedings consistent with this opinion.
VACATED AND REMANDED